Entitlements during lockdown

Entitlements during lockdown

by | COVID-19, General News

Much has been said by employer groups surrounding entitlements for employers during lockdowns within South Australia, but what about employees and their entitlements?

Workers may feel pressured to follow instructions from their employer under these stressful circumstances. However, it is important to keep in mind your rights as a worker and more importantly, understand your entitlements. Below are six of your rights as a worker which may potentially be available to you.

  1. Annual Leave – You cannot be forced to use your annual leave during an unpaid stand-down.
  2. Sick/Carer’s Leave – If you are sick or caring for someone whilst on unpaid stand-down then you can use your sick/carer’s leave and be paid for that leave. This is otherwise known as personal/carer’s leave.
  3. Re-crediting your Annual Leave – If you are on annual leave and you are either sick or caring for someone then your annual leave should be re-credited, and that leave should instead be called personal/carer’s leave.
  4. Injured worker compensation – If you are an injured worker and have been stood-down without pay then you should be entitled to receive compensation from your employer’s insurer.
  5. Reduced hours or duties – If you have been advised your hours or duties are being reduced or diminished permanently then this may give rise to a redundancy payment.
  6. Casual worker – If you are a casual worker then now is the time to see whether you can request a conversion to permanent work. The Federal Government changed this criteria recently but as a general rule, if you have been employed on a casual basis for 12 months with your current employer you have a right to request, and potentially be made permanent.

Outside of the above rights, there are several other forms of compensation or entitlements you may be able to claim, including:

  1. Long Service Leave – If you are struggling to make ends meet, check whether you have Long Service Leave Entitlements, or any other statutory entitlements available to you.
  2. Leave – You can enquire with your employer what leave is available to you in your circumstance.
  3. Timely Pay Slips – All workers have to be provided with timely pay slips advising not only of the wage that is being paid to you, but also has to show an accrual of your leave entitlements.
  4. Injury entitlements – If you have been injured at work in the past then make sure you are not missing out on any entitlements through the insurer.
  5. Unfair Dismissal – You have 21 days to make an application for unfair or unlawful dismissal so if you think your contract has been terminated or adversely affected then get in contact with your union or Boylan Lawyers.
  6. Liquidation or Bankruptcy – If your employer goes into liquidation/bankruptcy then the Fair Entitlements Guarantee (FEG) may provide you the accrued entitlements, including wages and leave entitlements that your employer cannot afford to pay.

If you are struggling with your current income during lockdown, you may be eligible for other financial Covid19 support, including:

  1. Pandemic Leave Disaster Payment – A $1500.00 payment from the Commonwealth Government to a worker for each 14-day period a worker is required to quarantine and cannot work due to quarantine (conditions apply).
  2. Covid-19 Disaster Payment – On 28 July 2021 workers can receive $375.00 per week if they are unable to work between 8 and 20 hours a week and $600.00 a week if unable to work for over 20 hours a week.
  3. SA Covid-19 Cluster Isolation Payment – Unlike the disaster payment this payment is a one-off payment of $300.00. You are eligible if you must self-isolate due to being in a cluster area and is to compensate you whilst awaiting your result.

Check your eligibility on the SA Government website here: www.covid-19.sa.gov.au/school-and-community/financial-support-for-individuals

 

 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker during the Covid19 lockdown, contact our team of experts on (08) 8632 2777. It costs nothing to ask a question.

 

 

 

Hurting injured workers with impunity

Hurting injured workers with impunity

by | Employment Law, General News, Unfair Dismissal

Injured Worker | Boylan Lawyers

Every South Australian worker is covered by workers compensation insurance which covers them if they are injured at work.

Our workers compensation law allows up to 2 years of wages as well as 3 years of medical expenses, rehabilitation, and a one-off payment of lump sum compensation if the Whole Person Impairment (“WPI”) from the injury is 5% or more.

South Australian workers with 30% WPI are called “Seriously Injured”. They are entitled to wages until retirement age and ongoing medical expenses. My Seriously Injured clients generally cannot work at all, need lots of help in their daily lives, and are in no position to support themselves or their families. Through no fault of their own they are significantly compromised.

Treasurer Rob Lucas is trying to change the way that WPI is assessed by changing the Impairment Assessment Guidelines. By doing it this way he avoids any scrutiny by the Parliament.

In most all cases the proposed changes will cut how much WPI injured workers are found to have. Rob Lucas is making it much harder for injured workers to get a lump sum payment or be considered Seriously Injured.

The changes will make life harder for our most vulnerable workers. It will affect their ability to recover from injuries, and return to work and the community. 

The Treasurer Rob Lucas should not be able to make such change unilaterally. Such changes must be kept in the ambit of Parliament to allow proper discussion and debate: not pushed through without proper consultation. 

There are over 750,000 employed persons in South Australia and their fate should not be left up to one person’s absolute discretion. We support a measure to ensure all changes to the Impairment Assessment Guidelines be assented to by the Parliament.

Hearing Awareness Week – 1 – 7 March, 2021

Hearing Awareness Week – 1 – 7 March, 2021

by | Employment Law, General News, Hearing Loss

Hearing loss is silent. It often arises gradually, and the sufferer will usually not be aware that they have it until significant damage has occurred. This makes it both insidious and dangerous, for if there is an external cause it may be that awareness comes too late for anything to be done to stop the damage. Indeed, as you are reading this, the damage may already have been done to you.

Hearing loss can have many causes. Some benign, perhaps even reversible, others more serious and indicative of underlying conditions. It is often permanent. Noise exposure is a common work-related cause. It can also be caused by other factors such as exposure to certain types of chemicals known to enter the body and cause damage to the hearing (a phenomenon known as “ototoxicity”).

Hearing loss is a quality-of-life condition. There is a tendency to treat it as insignificant and stoically shrug it off (or worse, have others dismiss it) but hearing loss is a pervasive and life-altering permanent disability and it must be regarded with due seriousness. Experiences with hearing loss can range from not being able to hear family members (especially children and grandchildren) when they speak, through to being unable to hear the smoke alarm if it goes off during the night. Daily hurdles impact different people differently, and can be inconvenient, frustrating, isolating, and even devastating. This is to say nothing of the effects of tinnitus (ringing or other sound that is perceived by the brain) which often arises in tandem with hearing loss itself and which can run the gamut from an occasional buzzing through to constant, blaring noise. Without proper management, these conditions can become all-consuming and those who suffer from them need understanding and, above all, support. Especially when these life-altering conditions are inflicted upon them by their work environment.

What Can Be Done If You Have A Hearing Loss?

If you have a hearing loss and were exposed to noise or chemicals known to damage hearing in the course of employment, then you should arrange a consult to speak to a lawyer about it. In South Australia, it is better to make a claim either while you are still working or within 2 years of retirement, but even if the exposure was many years ago, or you have been retired for a while, you may still be able to make a claim. It is better to ask the question than to leave the issue unaddressed.

If successful in a claim you could get both a lump sum payment as well as high-quality hearing aid devices and associated battery and maintenance costs covered on an ongoing basis.

You can contact Boylan Lawyers on 08 8632 2777 to arrange a free 30-minute consult.

This is Mental Health Week

This is Mental Health Week

by | General News

Mental Health Week | Boylan Lawyers

Most of us know about R U OK Day but did you know that this week (10 to 17 October) is Mental Health Week?

Mental Health Week is an annual event that aims to improve community awareness and interest in mental health and wellbeing. It is a nationally recognised time to focus on your mental health – a task that is particularly fundamental during a year in which we have all faced adjustment, uncertainty and barriers to normal daily connection.

There is an increasing willingness to talk about mental health in our families, amongst our friends, within our workplaces and more broadly in the community. Beyond Blue reports that Australia is one of the most mental health literate countries in the world (2019). We have a growing understanding of the importance of good mental health and there is bipartisan support allowing increasing political attention and funding. These are all steps in the right direction but it is something that forever will be a work in progress, particularly in the legal profession.

We invite you to use this week as motivation to engage in conversations with friends, family and the community about mental health and wellbeing. Most importantly, we hope it can serve as an opportunity for you to check in with yourself and access the valuable and accessible resources available to assist you. You deserve it and your wellbeing matters.

Find out more about Mental Health Week, how to support community wellbeing and avenues to seek support on the SA Health Website.

Find out about the program of events and activities for Mental Health Week 2020 here. It includes a comedy night and art exhibition!

Source – The Law Society of South Australia

Binding Financial Agreements and Consent Orders

Binding Financial Agreements and Consent Orders

by | Family Law, General News

Separation | Boylan Lawyers

Binding Financial Agreements and Consent Orders

 

Separation is one of the most strenuous times a person can go through. The process of dividing property can sometimes be worse than the final split itself.  It may seem simple at first, but the reality soon hits things can become complicated. It can become more than just “You take this, and I’ll keep that”.  Properties can be in joint names, mortgages and debts are also often in joint names. Superannuation is considered property of the relationship and so that also needs to be factored in. What was a simple and amicable split has now turned nasty and hostile. The idea of writing and signing an agreement can seem quite scary, but all is not lost!

Written agreements are quite common. This is especially the case when people are trying to arrange for the transfer of property and the division of superannuation between parties. In fact, in order to divide superannuation a written agreement needs to be provided to the superannuation company (trustee). So, what does a written agreement look like? Can I afford it? Do I need to go to court? Do I need a lawyer?

There are two main types of written legal agreements that can be made. They are binding financial agreements (BFA) or court orders. Court orders can be made by the court by applying to the court. While some matters need to go through the court process to resolve issues that cannot be resolved by agreement, they can also be made by consent between parties which don’t involve going to court, just an application to the court.

In this article, we’re focusing on agreements made together, or by consent. So that is binding financial agreements or Consent Orders. Often, we’re asked what is the better agreement to have?

The answer can vary for many reasons. Binding financial agreements may be appropriate for some people but completely inappropriate for others. It will depend on the individual circumstances of each case. However here is a guide that might help make that decision a bit easier.

This is intended as a guide only and you should always seek legal advice on your individual circumstances. While lawyers do charge a fee, it is a small cost for reducing the stress and complication that can arise when trying to draft a written agreement between two people who are still dealing with the raw emotion of separation.

Costs

Binding financial agreements are generally cheaper. There is no filing fee with the court and the main costs are just in drafting the order and getting information.

Consent orders have an application and agreement (orders) to create as well as a filing fee with the court.

Time

Because there is no need to file with the court, the process of creating and signing a binding financial agreement is much shorter.

Independent overview

Binding financial agreements are drafted with lawyers (sometimes without) on the bases that they are just and equitable. The reality is that they sometimes are not. People can end up agreeing to something when they are entitled to more. Once you have signed a binding financial agreement, it becomes legally binding and to overturn it you have to make an application to the court. This can create more costs for both parties.

Consent orders are looked over by a Registrar of the Court – they go through the calculations and information provided in the application to assess if the orders are just and equitable. For example, if the orders state a 80-20% split but it has been a long relationship with equal contributions, they will send the order back and ask for an explanation for the one sided split or that they agreement reassessed and resubmitted.

Stamp duty

Often people have houses and parties can save on transfer costs with consent orders. This helps both parties as they have a legally binding and fair order while maintaining their estate’s wealth.

What if someone doesn’t do what they are supposed?

A good agreement will have clauses that allow for the resolution of an issue arising from someone not doing what they are supposed to (i.e. not paying money). Many binding financial agreements as these clauses, however, there are circumstances where a party will have to initiate proceedings with the Court to get the agreement to be followed. This can be quite a costly exercise as you need to explain the agreement to the court, explain how it is a good agreement, in that it is fair and just; and then explain to the court what has happened and what orders you are seeking resolve the issue. Essentially you are asking the court to make a binding financial agreement into a court ordered order.

Consent orders work differently. They generally will have a clause that allows the Registrar of the Federal Circuit Court or Family Law Court to sign on behalf of the non co-operative party. This is a simple application, without a filing fee, and does not require the costs of an initiating application and affidavits. You don’t have to explain the agreement to the court because the court has already seen it and agreed with it.

Clean cut

Consent orders made by the Court are designed to create a clean cut between parties. No longer are they bound together financially. This means if a house is to be transferred, timelines for that to occur do not drag out forever.

Binding financial agreements, while also looking to create a clean cut, are not as bound to rules of a quick resolution. Some binding financial agreements can last for years, but for good reason. It may allow time for one party to take over the mortgage on the house, for instance. The issue arises when years down the track, what seemed like a good idea, is no longer possible or wanted. The agreement is still binding and still must be followed.

 

It is important to know that both documents are legally binding. Binding financial agreements come from a place where there is trust between parties. Consent orders also come from a place of trust but also come from a place where people want a little reassurance that when things go wrong, they can be resolved more quickly and efficiently.

 

At Boylan Lawyers, we can complete both forms of agreement with advice on the best option for your individual and personal circumstances. We can assist you to draft a written agreement saving you and your ex-partner time and stress.

If you are going through separation and want to know what your rights are, please contact us and make an appointment.

What’s in a day? Determing what is a ‘day’ of personal leave

What’s in a day? Determing what is a ‘day’ of personal leave

by | Employment Law, General News

What's in a day? | Boylan Lawyers

High Court Delivers Landmark Judgment

 

On 13th August 2020, the High Court handed down the landmark decision of Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 (‘Mondelez v AMWU’). The matter clarifies the interpretation of the ‘10 day’ entitlement of personal/carer’s leave under section 96(1) of the Fair Work Act 2009 (Cth), by determining what is meant by a ‘day’ of personal/carer’s leave.

Background

The matter was originally heard in the Full Court of the Federal Court in Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union [2019] FCAFC 138.

The dispute related to the following provision of the Fair Work Act 2009 (Cth) (‘Act’):

 

SECT 96: Entitlement to paid personal/carer’s leave

(1)  For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

(2)  An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

The matter concerned the issue of the accrual of paid personal/carer’s leave under the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Bargaining Agreement 2017 (‘EBA’).  Under the EBA, the employees who brought the dispute worked regular 12-hour shifts and were entitled to 96 hours of paid personal leave per year, equating to 8 days of leave. The AMWU argued that such entitlement under the EBA is inconsistent with section 96(1) of the Act, as it denies employees who regularly work shifts longer than 7.6 hours their full entitlement of 10 days paid leave.

 

Issue in dispute

The issue in this matter relates to the interpretation of the word ‘day’ in the context of an employee’s right to 10 ‘days’ paid personal/carer’s leave under the Act.

It was the AMWU’s submission that the ‘working day’ should be interpreted as being consistent with a ‘calendar day’ or a 24 hour period. The ‘working day’ interpretation allows all employees to take their 10 day leave entitlement per year, regardless of their shift patterns or hours of work. The Mondelez employees of this dispute regularly worked 12 hour days, which equated to eight 12 hour days according to their EBA rather than 10 days of personal/carer’s leave prescribed under the Act.

On the other hand, Mondelez and the Minister submitted that the word ‘day’ was to be interpreted as a ‘notional day’ consisting of an employee’s average daily ordinary hours based on an assumed five-day working week. This means that paid personal/carer’s leave would be proportionally calculated based on an employee’s ordinary hours of work.

 

Decision of the Full Court of the Federal Court (2019)

The Federal Court decision preferred the AMWU’s ‘working day’ approach. This decision was significant in that it would have the effect of changing the way personal leave accrued into the future, as Australia historically applied a ‘notional day’ approach.

 

The High Court’s decision

On appeal, the High Court reached a decision which overturned the Federal Court’s decision. The High Court favoured the ‘notional day’ approach, which considers one ‘day’ of work as one tenth of an employee’s ordinary working hours in a two week period.

 

The High Court found that the adoption of a ‘working day’ approach would have adverse consequences for irregular or flexible work patterns. Under this approach, employees with hours spread across fewer days with longer shifts could accrue more leave, making entitlements unfair and reducing the desirability for employers in adopting more flexible work arrangements. The ‘notional day’ approach was found to avoid these adverse consequences, and better protect against loss of earnings and support flexible work arrangements.

 

Consequences of the decision

The effect of the High Court’s decision is as follows:

  • Employees are paid personal/carer’s leave equivalent to their ordinary hours of work in a two-week period and is calculated proportionally depending on an employee’s ordinary hours of work at the rate payable for those ordinary hours.
  • For employees who do not follow a two-week work pattern, the entitlement will be accrued at a rate of 1/26 of their ordinary hours in a year, at the rate payable for those ordinary hours.
  • The accrual and payment of personal/carer’s leave will not be affected by differences in the spread of an employee’s ordinary hours of work in a week.
  • Any personal/carer’s leave taken will be deducted based on ordinary hours taken as leave.

 

Boylan Lawyers are available to provide legal advice on any of your employee entitlement questions.

Please phone us on 8632 2777 for a free initial consultation.